248 F. 636 | 5th Cir. | 1918
Suit by Carl R. Heye, defendant in error, hereinafter called plaintiff, against the Birge-Forbes Company, plaintiff in error, hereinafter called defendant, was filed December 4, 1914. The petition alleged that plaintiff was a citizen of Germany, and the defendant a Texas corporation; that in 1901 defendant, who was engaged in business of buying, selling, and exporting cotton, made a contract with plaintiff, then a cotton broker in Bremen, whereby he became selling agent in that city for defendant; that this relation con tinned until May, 1911; that the contract provided that all sales were to be made subject to and governed by Bremen class and arbitration and the rules of the Bremen Cotton Exchange; that between October 1, 1910, and about January 1, 1911, plaintiff made sundry sales for defendant to a number of different buyers; that disputes and controversies arose between the seller and the buyers as to the quality of the cotton sold, the buyers claiming that the colton delivered was not up to the quality and description offered by defendant, and upon which the prices were based, and that the cotton was not in accordance with the contracts of sale; that these claims and disputes were submitted to arbitration in accordance with the rules of the Cotton Exchange, the
Defendant, answering, attacked the awards made by the arbitrators, and further pleaded that, under the laws of Germany, each of the claims was barred by limitation, and that if the plaintiff made tire payments, as he alleges, he made them long after they were barred by limitation under the laws of Germany as to both the plaintiff and the defendant, and when he was under no legal obligation to pay them.
Judgment was for plaintiff under instructions from the court.
The substantial issues involved in the trial of the case are indicated by the assignments of error of defendant after judgment against it, to the effect that there was error: (1) In charging the jury that the judgment of May 23, 1913, adjudged the validity of the awards involved in this suit, and especially in charging that that judgment adjudicated awards in excess of $36,610.96; (2) in refusing defendant's requested instruction to the effect that the evidence was not sufficient to authorize the finding thax any awards were rendered in favor of any of the buyers of cotton sold by plaintiff, as agent of the defendant; (3) in the' charge that the claims were not barred by the laws of limitation in Germany; (4) in instructing a verdict for plaintiff for $41,536.79; and (5) in overruling the defendant’s motion to quash the depositions of Oscar Folletín and Carl R. Heye.
“AVe find for the plaintiff in the sum of $36,610.90, being the amount, paid by the plaintiff on the awards made by the Bremen arbitrators upon the differences in the cotton as sold and that; actually delivered at Bremen to the buyers at that place, together with 6 per cent, interest on both of said sums from May 1, 1911.”
A judgment was entered, in which the verdict of the jury was incorporated, and by which it was adjudged that the plaintiff recover of defendant the sum of $43,082,64, with interest, “said sum being the principal and interest of such parts of the liabilities alleged in plaintiff’s pleadings to have been incurred by him as he has up to this time actually paid, and as to which a cause of action in his favor against the defendant has already accrued.”
The judgment from which quotations have just been made, considered in connection with the pleadings, the charge of the court, and the verdict of the jury, necessarily involve the proposition that the defendant was bound by the awards in arbitration, which were alleged in the petition, and which became the basis of the suit. It is apparent that the only circumstance which prevented the plaintiff from recovering a judgment for the total amount sued for was the fact that, while he had become liable to pay the entire amount of the awards, some of the awards had not actually been paid by him. The material and essential issues of law and fact presented in the present case were presented by the pleadings in the previous case, were the subjects of the introduction of evidence, of argument of counsel, of discussion by the court, and were necessarily ruled upon in giving the judgment rendered in that case. If the defendant was not bound by the arbitration awards, the judgment in that case was erroneous. If it was not so bound, the judgment could not have been rendered. The former case necessarily involved a determination of the basic facts essential to recovery in this case. With reference to this matter it has had its day in court, and is not entitled to a second determination of it, A judgment is conclusive in a subsequent action between the same parties of all issues definitely adjudicated.
Evidence was introduced to establish the identity of the awards sued on in this case with the awards which were passed upon in the other case, but for which judgment was not rendered on account of the circumstance that plaintiff had not yet: discharged them.
‘•Tiie claim for cancellation or reduction and the claim for compensation on account of the absence of n promised quality are barred by prescription, unless the seller has fraudulently concealed the defect, in the case of movables in six months after delivery; in the ease of land, in one year after the transfer. The period of prescription may be extended by contract.”
The parties to this suit, in entering into their contract, realized that there woidd be differences between them and the purchasers with
The judgment, modified as indicated, is affirmed.
Modified and affirmed.
Extract from the Minutes of February 22, 1918.
The judgment heretofore, on the 11th day of February, 1918, rendered in this case, is so amended as to be without prejudice to the rights of any one, not an alien enemy, to establish an interest, by proper proceedings in the District Court from which the appeal herein